[Ip-health] Bridges Weekly: WIPO Patent Committee Looks at Public Health, Tech Transfer

Thirukumaran Balasubramaniam thiru at keionline.org
Wed May 25 23:24:59 PDT 2011

Bridges Weekly Trade News Digest • Volume 15 • Number 19 • 25th May 2011


Intergovernmental talks at the World Intellectual Property Organisation (WIPO) plodded forward last week as countries debated patents and public health, technology transfer, and exceptions and limitations to patents. The 16-20 May meeting of WIPO’s Standing Committee on the Law of Patents (SCP) often saw developed countries and developing countries at odds; nevertheless, some compromise was reached and most countries felt “optimistic about the way forward”.

The SCP session, the last before WIPO’s annual General Assembly in September, was chaired by Albert Tramposch, from the US Patent and Trademark Office. His election caused some controversy after a number of developing countries alleged that Tramposch was favouring developed countries in the negotiations while being quick to dismiss developing country proposals.

Patents and public health proposal makes some headway

One of the most important topics addressed during the week-long session was a proposal by the African Group and the Development Agenda Group (DAG)’s for a work programme on patents and health aimed at boosting the capacities of member states to take full advantage of flexibilities in international intellectual property rules.

The DAG, which consists of around 20 developing country members including Brazil, Egypt, India, and Indonesia, aims to mainstream development concerns into all aspects of WIPO’s work.

Arguing that “the patent system should be consistent with fundamental public policy priorities and in particular the promotion and protection of public health,” the 20-point proposal comprises three main elements: commissioning of studies by independent experts, increasing information exchange, and enhancing technical assistance (especially to developing countries and LDCs). The work programme would enable them to “adapt their patent regimes to make full use of the flexibilities available in the international patent system.”

International intellectual property rules typically include built-in measures affording governments latitude to deviate from standard protections under a variety of situations. One flexibility in WTO rules, for instance, gives countries the right to effectively break patents for public health and other purposes. However, very few developing countries make full use of such flexibilities, because they lack the national policy infrastructure to implement these measures. And many bilateral and regional trade agreements include intellectual property provisions that go far beyond those in the WTO’s Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), such as exclusive protection for clinical test data for drugs that delay the entry of generic competitors into the market.

The proposal affirms that bilateral and regional trade agreements should not restrict the use of TRIPS flexibilities if public health is to be protected.

Brazil, who forms a part of the DAG, noted that the proposal is “very much in line with WIPO Development Agenda Recommendation 22″, which states that WIPO should address in its norm-setting activities issues such as “potential flexibilities, exceptions and limitations for Member States” and “the possibility of additional special provisions for developing countries and LDCs.”

South Africa, speaking on behalf of the African Group, made clear that “underpinning the Development Agenda recommendations is the need to address the asymmetrical relations between IPR holders and public use.”

Chair Tramposch referred to the proposal as “comprehensive and well thought out.”

Hungary, on behalf of the EU, argued it was important to avoid duplication of work already done in other UN agencies like the WHO or the WTO in the areas of public health and patents and within WIPO itself. Representatives from all three organizations presented work already undertaken, including a WIPO patent-scoping study on patents in relation to pandemic influenza.

Developing countries, however, countered that existing work was not taking place in an “intergovernmental format,” as their project proposed.

In a statement, Knowledge Economy International, an NGO, supported the African Group/ DAG proposal, and stressed that “there can be no realistic expectation of universal access to life saving medicines and other medical technologies unless governments can issue or threaten to issue compulsory licenses to patents, and take other steps to enable competition for products.”

Consensus on technology transfer study reached after unforeseen challenge

Last week’s talks were marked by surprise as India, on behalf of the Development Agenda Group, proposed unexpected changes to an updated study on technology transfer, claiming that it had failed to address patents as barriers to technology transfer. In India’s view, the report was therefore biased towards only the positive elements of patents.

The study’s intention, as stated in the WIPO document presented to member states, had been “to contextualize various issues relating to transfer of technology in a holistic matter, and contains no conclusions.”

India proposed that a team of experts evaluate obstacles to technology transfer beyond those covered in the initial study. However, this proposal sparked substantial resistance from the US and other developed countries, which argued that framing the issue in such a way was “not neutral and presupposes the outcome of the study.”

Countries later agreed to the WIPO Secretariat hosting a seminar on the issue on margins of the next SCP, as part of WIPO’s seminar series on economics. Tramposch assured countries that “a couple of days after the seminar a summary of the proceedings would be posted on the website  of WIPO’s chief economist.”

In the end, India said it was content with the compromise reached and was glad that “the SCP has started an important and necessary discussion,” but reiterated that “the issue of technology transfer is at the heart of the fundamental trade-off inherent in the patent system.”

Similarly, other developing countries said they “looked forward to translating these discussions into meaningful efforts,” while developed countries accepted the consensus but cautioned to avoid the duplication of efforts in all areas of WIPO.

Patent quality and exceptions and limitations discussed

Earlier in the week, Canada and the United Kingdom put forth a proposal on patent quality, focusing on technical infrastructure development, information exchanges, and process improvement.

According to the proposal, enforcing patent quality means that patent offices would ensure that the patents they grant “meet the standards that foster the policy objectives of the patent system.” It contends that focusing on patent quality will further the aims of the Development Agenda, and that patent quality is “a key aspect of how the patent system functions in order to deliver economic and social policy objectives.”

Many developing countries fear that this may mean efforts towards global patent system harmonisation, which could adversely affect countries without the same level of infrastructure as some developed countries. South Africa highlighted this point and asked “the SCP to take into account the different levels of development among Member States.”

Another subject of debate last week was exceptions and limitations to patent rights. Discussions focused particularly on a draft questionnaire prepared by the WIPO Secretariat intended “to facilitate the exchange of information on exceptions and limitations provided in national and regional laws.”

The questionnaire arose from a proposal made by Brazil at an earlier SCP session, and was meant to survey different policies as a first step towards understanding exceptions and limitations at the national and regional levels. The questionnaire included questions relating to private and/or non-commercial use, preparation of medicines, use of articles on foreign vessels, and compulsory licensing among others.

Many developing countries view exceptions and limitations as a powerful tool to further access to knowledge in particular, enriching human resources and facilitating economic growth.

In addition to the questionnaire, countries considered a summary of an experts’ study on exclusions, exceptions and limitations commissioned by the WIPO Secretariat in 2009. The study provided further basis for the discussion, though some developed countries felt that there was a need to better define possible exceptions before carrying on with the questionnaire exercise.

Brazil stated that they felt that the study and the draft questionnaire were both “very positive first steps,” but urged countries to keep in mind that these are only preliminary steps towards exploring the issue of exceptions and limitations.

ICTSD reporting. “The Use of Flexibilities in TRIPS by Developing Countries: Can They Promote Access to Medicines?” WORLD HEALTH ORGANIZATION COMMISSION ON INTELLECTUAL PROPERTY RIGHTS, INNOVATION AND PUBLIC HEALTH, August 2005; “WIPO Members Discuss Patent Quality, Public Health, Exceptions” IP WATCH, 17 May 2011.


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)

thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

More information about the Ip-health mailing list